Public Defender: Remove DA From Mass Murder Case

ByREX DALTON |February 25, 2014

An effort by public defenders to disqualify the Orange County district attorney’s office from prosecuting the man charged with the region’s largest-ever mass murder could evolve into a minitrial of prosecutorial conduct in a broad number of cases.

Public defenders for Scott Evans Dekraai, the man charged in 2011 with gunning down eight people at a Seal Beach beauty salon, filed a 90-page motion Friday that seeks to have the state attorney general’s office take over the prosecution of the case.

Scott Sanders, the lead public defender in the case, has accused county prosecutors of using a jailhouse informant to improperly obtain information from his client, then violating the defendant’s rights by failing to make accurate disclosures to his attorneys.

The defense motion also describes a pattern of such unconstitutional actions involving at least nine other cases in which a number of defendants already have been convicted.

A hearing on the motion before Judge Thomas M. Goethals in Superior Court in Santa Ana likely will begin March 7 and possibly last for a week.

The motion filed Friday followed Goethals’ unsealing the previous week a 505-page motion in the case that alleges “outrageous government conduct … by prosecutors and law enforcement.”

The experienced informant in the Dekraai case allegedly was part of a network of inmates that the Orange County Sheriff’s Department strategically placed in county jails to secure information from defendants who had attorneys. The intelligence was shared with prosecutors, the defense attorneys allege, but not with them, as they contend is required.

Sanders’ motion goes on to accuse prosecutors of involvement in alleged wrongful convictions, perjury and improperly withholding evidence in other cases.

“The stunning indifference to defendants’ rights revealed in the study of these cases is systematic and relevant to whether” a Dekraai prosecutor will provide “helpful evidence” to which the defendant is legally entitled, wrote Sanders in the motion.

In the Dekraai case, Sanders’ motion specifically seeks recusal of two prosecutors: Dan Wagner, an assistant district attorney who heads the office’s homicide section, and Scott Simmons, a deputy district attorney for homicides.

A spokeswoman for the district attorney’s office said the agency had no comment at this time but would respond to the public defender allegations in its own motion before the upcoming hearing.

Sanders argues that the alleged activities have so polluted the DA’s office that naming any other prosecutor from the agency would create an insurmountable conflict of interest for that deputy DA.

A new county prosecutor, Sanders wrote, would have to “shoulder … the burden of protecting their office, other agencies and their fellow employees” from the accusations of violating the rights of Dekraai and others.

Or a newly appointed county prosecutor of Dekraaai would have to acknowledge the wrongdoing as alleged by public defenders, Sanders wrote.

Such an acknowledgement by a county prosecutor “could reasonably lead” to an investigation by an outside agency, a grand jury or possibly independent oversight, the motion states.

Among the nine cases cited by Sanders is one involving a 2007 murder charge for which the death penalty was sought against a gang member.

“What type of misconduct occurred in this case?” Sanders wrote in the motion. “Nearly every form imaginable.”

“Critical discovery” allegedly was withheld, a purported confession was improperly obtained, and “fake paperwork” was created to assist an informant, the motion states.

“The misconduct engaged in throughout the trial turned almost bewildering,” wrote Sanders in the motion.

Ultimately, Sanders wrote, “The misconduct assured a conviction, and [affirmation] on appeal” with the decision by the 4th District Court of Appeal “based, in part, on provably false and misleading testimony” by a jailhouse informant.

Dekraai attorneys also are asking Goethals to block the application of the death penalty if the defendant is convicted or to dismiss the filing of special circumstances that would allow the death penalty.

If the death penalty is denied, Dekraai — who allegedly shot his ex-wife, Michelle M. Fournier, then turned the gun on others — could be sentenced to eight consecutive life sentences. If the special circumstances allegation is dropped, he could sentenced to 400 years in prison.

While the district attorney’s office is seeking the death penalty, certain victim families reportedly are concerned about that course.

In recent published accounts in community news organizations, some family members of victims have said they no longer favor the death penalty, fearing seeking that punishment could derail a conviction.

Rex Dalton is a San Diego-based journalist who has worked for the San Diego Union-Tribune and the journal Nature. You can reach him directly at rexdalton@aol.com.